California high court again refuses to stop gay marriages

A gay couple embrace during their wedding ceremony in San Francisco. (Wally Skalij / Los Angeles…)

SAN FRANCISCO — The California Supreme Court refused for the second time to stop gays from marrying Tuesday, rejecting a bid by a San Diego County official who contends Proposition 8 remains state law.

In a closed session, the state high court turned down a request by San Diego County Clerk Ernest J. Dronenburg Jr. for a temporary hold or "stay" on same-sex marriages. The court rejected a similar request last week by the sponsors of Proposition 8, the 2008 ballot measure that banned gay marriage.

A court spokesman said the justices denied the hold on a 6-0 vote, with Justice Kathryn Mickle Werdegar not present.

Dronenburg asked the court Friday to stop the marriages while it considers whether a 2010 federal injunction required him and other county clerks to issue marriage licenses to same-sex couples.

Lawyers for Dronenburg told the court he was in "a quandary" because state officials have ordered him to give licenses to gay couples, but the California Constitution continues to define marriage as an opposite-sex union.

"County clerks are issuing marriage licenses in violation of state law," wrote Charles S. LiMandri, a lawyer with a group called Freedom of Conscience Defense Fund, which is representing Dronenburg.

ProtectMarriage, the sponsor of Proposition 8, has argued the injunction by a San Francisco trial judge did not bind all counties because it was directed at state officials and only two county clerks. The group argues that state officials do not control county clerks in the issuing of marriage licenses.

So far, clerks from about 24 of the state's 58 counties, including Los Angeles, have opposed the attempt to revive Proposition 8. They contend that chaos would result if each county was permitted to interpret the marriage laws on its own.

Same-sex couples began marrying in California again on June 28, two days after the Supreme Court ruled that initiative sponsors may not take the place of state officials in defending a ballot measure.

That ruling reinstated the injunction by retired Chief U.S. District Judge Vaughn R. Walker, who ordered state officials and the clerks of Alameda and Los Angeles counties to stop enforcing Proposition 8. The same-sex couples who filed the federal suit live in those counties.

State officials say the new challenges amount to a back-handed attempt to persuade a state court to interpret a federal judge's order. Such challenges properly belong in federal court, the lawyers for state officials have argued.

Under the June 26 Supreme Court ruling, ProtectMarriage has no standing to return to federal court to try to modify or clarify the injunction. California law, however, permits initiative sponsors to defend their measures in state court.

San Francisco City Atty. Dennis Herrera, whose office is representing four counties, told the court that Walker did not exceed his authority when he blocked enforcement of Proposition 8.

"A district court has the fundamental authority to strike down invalid laws and to enter orders benefiting people not before the court," Herrera's office argued.

The California Supreme Court is not expected to rule on the challenges until August at the earliest.

The court struck down California's ban on gay marriage in 2008, but voters reinstated it when they passed Proposition 8 six months later.

Two gay couples then went to federal court to challenge the ban on U.S. constitutional grounds, resulting in last month's procedural ruling by the Supreme Court.